The purpose of our discussion this morning, as has already been
made clear, is to consider the alternatives to a form of
interpretive dispute in which historians of law in late colonial
and early national America have been recurrently engaged
throughout the twentieth century. The elements of this dispute
have already been suggested, and perhaps no further
characterization is necessary from me; I would say, if it were
not tediously redundant, that we were seeking an escape from
hypotheses of transformation--that is, interpretations based upon
the asserted existence of sharp and discontinuous change in the
legal system of British North America occurring sometime between
1770 and 1850.

Although I have come to suggest that it is once again time to
discard "transformation" as an idea, I don't want to associate
myself with the proposition that transformationism was a form of
historiographic pathology. The "formative era" and the
"transformation of American law" were not historical frauds like
the rise of the middle class--a process discovered by historians
to have begun (and ended) in every century from the eleventh to
the nineteenth. These were rather historiographic approaches
intended to account for everybody's deeply felt and
commonsensical intuition that the American legal world of 1850
was a very different place from the world of 1750. I was more
foolish when I was younger, and no doubt I thought that writers
such as Morty Horwitz and Bill Nelson could be dismissed out of
hand. I published words having that implication, and I was
wrong. The problem, like the problem for geologists in the
nineteenth century, was not to deny the fact of change, but to
decide whether to account for it on broadly uniformitarian or
catastrophist premises. In our little corner of the world, the
time has come for a resurgence of uniformitarianism, and my
purpose this morning is to suggest one of what I trust will be a
species of gradualist explanations for the replacement of one
legal regime by another.

I regret to say that I have not brought to bear upon the project
any innovative new ideas. Indeed, it is my misfortune to declare
that the process in which I have been engaged fitfully and
inefficiently over the past six years, as I tried to understand
legal development in New York during the eighteenth century, is
one of increasing conceptual poverty. One by one I tried to
match the sophisticated conceptions of my more imaginative
contemporaries against the inadequate record, and one by one they
failed. I have nothing left to offer, after the better part of a
decade, but a single truism of little apparent value--in the last
quarter of the eighteenth century the British Empire in North
America dissolved, and was replaced by a new federal legal regime
whose intellectual and administrative center was on this side of
the Atlantic.

My truism, you will note, does not employ the word revolution.
This is not a resurgence of Bill Nelson's Americanization
hypothesis, though I hope to convince you that it is I, and not
Bill, who legitimately can lay claim to being interested in the
Americanization of the common law. For from the perspective of
New York, at least, I conclude that it makes a great deal of
sense to think of the contours of eighteenth-century development
as set largely by the processes of empire and its dissolution.
The political, economic, and strategic imperatives of empire
exercised enormous influence on the formation of the legal system
in New York from 1664 on, and the benefits and disadvantages of
having a local system embedded within the larger imperial legal
structures were primary items of attention for colonial legal
thinkers. John Reid has in recent years urged us to take
seriously the British Empire as a legal regime, and to speed us
on our way he has given us no shortage of words on the subject.
I have elsewhere expressed my conviction that his work is of the
utmost importance, and I shan't bore you by repeating myself
here. I shall only say that in both public and private law
domains the Empire was a legal as well as a political entity,
with both advantages and disadvantages for colonial lawyers and
clients, and the history of early national law in America cannot
be rendered comprehensible without a fuller description than we
are accustomed to provide of the legal institutions of the
Empire.

I recognize that this will strike some of you as a bizarre
proposition. Have we not an entire volume on Privy Council
Appeals alone, dozens of volumes on navigation acts and customs
policy, to say nothing of more Osgood and Gipson than any
reasonable historian can stand? Surely we do, and yet the vast
bulk of this material concerns the empire as a bilateral
structure; in its legal dimension it is comprised of the rules
governing the relations of the colonies and the metropolis. But
to the contemporary legal observer, client or lawyer, that was
not all, or even most, of what the empire meant.

Let me give here an anecdotal illustration. From 1770 through
the beginning of the occupation of New York City there met
(roughly monthly) a Moot Society in the city, which in the
typical fashion debated propositions of law considered to be of
interest to the intensely practical elite of the City Bar. It
occurred to me a while ago that it might be rewarding to know
what these lawyers thought was important enough to talk about.
Perhaps you will be less surprised than I was to discover that a
large proportion of the problems posed, and an even larger
proportion of the discussion time, was devoted to problems of
intercolonial commercial transactions, and what we might be
inclined to call the civil procedure of interstate litigation.
To the application of Parliamentary statutes, or the complexities
of trans-Atlantic transactions or litigation--in short, to the
staples of our retrospective understanding of the legal meaning
of empire, not a single hour of discussion was devoted.

This is an illustration, not a conclusion, but for me it serves
as a potent reminder that we must think of empire not solely as a
structure determining the legal relations between the metropolis
and colonists, but also as a working legal system regulating the
relations of North Americans with one another. The colonial
legal systems of 1760 were as fully embodied within a federal
system as the state legal systems of 1860. We should understand
their development, I think, as occurring within the context of
the replacement of one overarching federation by another.

Recognition of the importance of imperium effects substantially
the way one views doctrinal problems of all sorts, ranging from
the land law to the problems of inter-colonial commercial
transactions, insolvency, and the like. There is a
transformation of law in the late eighteenth century; I call it
"devolution," by which I mean the replacement of the legal
structure of empire with British North America's second federal
system. In the public law domain, the process of devolution had
of course two major elements: the adjustment of principles
governing the relation between the federal political power and
the individual, and the redefinition of the relation between the
constituent states and the federal entity. As John Reid has
taught us, the Americans viewed these as primarily
legal problems before the process of devolution began,
and they remain the great problems of public law thereafter, as
the Americans under their newly-devolved authority seek to make
good on the principles they declared during the climactic
disputes of the 1760s and '70s.

On the private law side, the most visible characteristics of the
new system are a concern with rationalizing the structures of
what had been inter-colonial commerce (the legal equivalent of
"thinking Continentally" rather than trans-Atlantically), and a
decline in the importance of custom as a source of law.

The former of these points, the legal replacement of imperial
structures for regulating inter-colonial trade by a concern with
interstate commerce, is insufficiently appreciated because the
problems of inter-colonial legal relations are understressed in
the extant literature. Our tendency is to work in one colony at
a time, or else to perform "comparative" studies that take two or
more independently. I was guilty of this too, and my own book
has come in important ways to seem to me one of the defective
works that I hope will not be emulated in future. I did my
research substantially undervaluing the importance of
inter-colonial trade in affecting institutions of arbitration,
insolvency, and admiralty, to name only a few. Similarly with
the land law, which ought to be understood in New York as
primarily responsive to inter-colonial tensions over boundaries
and the availability of tenants (as Sung Bok Kim long ago
suggested). My book explores the development of law in New York
through the immediate post-Revolutionary period with these issues
in mind; its primary difficulty, as I have already suggested, is
that it was undertaken, and the research performed, by a callow
fellow who thought that disproving the claims of Nelson and
Horwitz was the summum bonum of colonial legal
scholarship.

This leaves open the second major conceptual issue to be
addressed by those writing about private law in the period from
1750 to 1850--the decline of custom as a source of law in the new
American regime. Needless to say, having identified this as a
primary issue, I propose to write another book about it. Too
little time remains to me this morning to reveal the full extent
of my ignorance about it, but I can make at least a few
suggestions. What fifteen years ago was called the new
instrumentalism of early national judges seems to me now like the
behavior of lawyers who, lacking the gloss of reliance on custom,
perforce revealed other elements of the legal reasoning process
which were less visible, though no less present, in the legal
technique of the Empire (and which, it is unnecessary to say,
remained less visible in the work of common law judges who
remained within the Empire, in England and elsewhere). Custom,
after all, was a principle of federalism within the British
Empire--one whose roots lay in the federalism of 1087, not 1787.
To the Americans, custom as a source of law created more problems
than it solved, as the writings of Grimke, Rantoul, and others
suggest. And thus, in a fashion I can now only indicate by
hand-waving, the basic preconceptions of one federal system
slowly gave way to another, and the intellectual environment of
American law took on a distinctiveness that gave the impression
of an overnight transformation.

I have gone on long enough. Let me summarize by affirming my
belief that the forging of strong narrative links between our
accounts of the late colonial and early national legal systems
will be achieved, at least in part, through a renewed
consciousness of the federal nature of both the
colonial and national legal systems. Renewed attention to the
empire as a legal system will cause us to view the legal world of
early national America not as identical with colonial America,
but as a system newly born of old themes, pursuing with
technology new in detail aims old in conception, and responding
in 1830 to problems that can be glimpsed, not in embryo but in
altered adult form, in the world of 1760.